https://www.slab.org.uk/guidance/fees-for-trial-days/
https://www.slab.org.uk/guidance/fees-for-trial-days/
The following paragraphs prescribe fees for trial diets:
The ‘trial per day’ fee may be payable after the first witness is sworn in summary proceedings or where the jury is balloted or empaneled in solemn proceedings.
There are 3 categories of trial based on the nature of the charges being prosecuted in the High Court and 2 categories for cases in the Sheriff and Justice of the Peace Court.
It is the charges libeled against the assisted person and covered by the grant of legal aid which determine which category of fees should be allowed.
Charges relating to any co-accused in the proceedings are of no relevance.
Where we are not able to establish which offence falls under this paragraph from the information available, we will allow fees at the appropriate case category which we are satisfied is payable and invite you to provide further information in support of the claim where this results in a reduction in the case category which has been claimed.
Paragraph 17(b) of the notes on the operation states:
“where the trial of an accused person proceeds in respect of more than one offence, the fee payable in terms of paragraphs 3 of Chapters 1 and 2 of Part I and paragraphs 2 of Chapters 1 and 2 of Part III shall be that for the offence for which the highest fee is prescribed”.
Where an assisted person faces multiple charge the category for which the highest fee is prescribed against that individual accused determines the category which applies.
For example, an indictment may feature a charge of possession with intent to supply or being concerned in the supply of a class A drug and a number of charges of possession with intent to supply or being concerned in the supply of a class B or class C drug. The charge falling into the highest category is payable which in this example would be category B.
Paragraph 17(hc) of the notes on the operation states:
“where a case against an accused person proceeds in respect of offences which are not prescribed in this Schedule, the fee payable is that in paragraph 3(b) of Chapter 1 or 2 of Part 1 (where the proceedings are in the High Court) or paragraph 2(b) of Chapter 1 or 2 of Part 3 (where the proceedings are in the Sheriff or JP Court) of the Tables of Fees”.
Where the offence libeled is not included within any of the above categories you must charge fees at category B rates.
The following points should be considered when making a claim based on category A for the following offences:
Where an accused features on more than one charge of attempted murder, or where the accused is charged under a single charge of attempted murder involving the attempted murder of multiple complainers, category A fees are chargeable under this category.
For the purposes of the fees regulations where an offence under the Domestic Abuse (Scotland) Act 2018 includes reference to sex/penetration without consent you may charge as category A.
Where the offence is libelled under Section 1 of the 2009 Act fees are chargeable at category A.
Paragraph 22(a) of the notes on the operation states:
“commercial premises” means a bank, building society, post office, security vehicle, currency exchange or licensed gambling premises”
For the purposes of the fees regulations where you are satisfied that the premises meets this definition you may charge fees under this category.
Otherwise you should charge fees at the appropriate case category which you are satisfied is payable.
Where the indictment contains specific reference to torture, or where the charges clearly demonstrate the characteristics of torture on any reasonable view, fees are chargeable under this category.
An offence and charge contrary to Section 134 of the Criminal Justice Act can also be paid under this category.
It is not necessary for the offence to be libeled under the Firearms Act 1968 and where it is not libeled, but a charge makes reference to the accused being in actual possession of a firearm, fees are chargeable under this category.
The following points should be considered when making a claim based on category B for the following offences:
Although “with aggravations” is not defined within schedule 2, common aggravations include permanent disfigurement or an assault which places the person’s life in danger. Additionally, we consider the offence to be aggravated if, for example, there is a racial or religious aspect to the offence.
Paragraph 22(a) of the notes on the operation states:
“retail premises” means any premises, other than commercial premises”
For the purposes of the fees regulations where you are satisfied that the premises meets this definition you may charge fees under this category.
Otherwise you may charge fees at the appropriate case category which you are satisfied is payable.
Please note that category B in the Sheriff Court contains all charges which are in Category B and C in the High Court.
Paragraph 17(a) of the notes on the operation states:
“a trial shall be taken to commence
Where you are satisfied that the first witness has been sworn (in a summary case), or the jury has been balloted or empanelled (in any other case) the full rate for a trial may be charged.
Otherwise you should charge the appropriate fee in the circumstances.
Where the trial, having already commenced, has not proceeded on a particular day you must have regard to the terms of guidance in relation to the fees payable under paragraph 4(p) in the High Court and 3(o) in the Sheriff and Justice of Peace Court for adjourned trial diets (trial having commenced).
Paragraph 17(aa) of the notes on the operation states:
“where a trial, or other hearing where a prescribed fee is payable at the rate for a trial, exceeds 30 days in total, the fee payable is reduced by 10% for every day in excess of 30 days”.
Where a trial lasts more than 30 days, you must have regard to the total number of trial days attended by you and any other counsel acting in the same or equivalent capacity, in the proceedings and ensure that the reduced rates are applied for all trial days after the thirtieth day.
This only applies to days payable at the full rate for a trial and you should not include any trial diets that are payable at a lower rate.
For example, if you attend a 32 day trial and three of those days are payable as an “adjourned trial diet (trial having commenced)”, no reduction would apply as there would only be 29 days payable at the full rate for a trial.
Where prior approval is in place for senior and junior counsel we consider ‘senior’ or ‘junior as leader’ to be acting in an equivalent capacity, that is, as the leading counsel.
Where prior approval is in place for more than one counsel we consider ‘junior alone’ or ‘junior with leader’ to be acting in an equivalent capacity.
You may charge the first 30 days at the full rate of trial with the remainder of the diets being paid the reduced rate. This applies even when more than one junior counsel attends across the trial diet.
For example in a 32 day trial where one junior counsel attends the first 27 trial diets and is replaced by an alternative junior who attends the remaining five trial diets the principal junior can be paid 27 days at the full trial diet. The alternative junior can be paid three days at the full trial rate with the remainder at the reduced rate.
Both separately instructed junior and senior may claim for the first 30 days at the full rate of trial.
For example, where junior counsel attends five days of trial before the trial is deserted you may charge all five days at the full rate of trial.
If, after the indictment is re-raised, prior approval is obtained for senior counsel who attends a 32 day trial, you may charge the first 30 days at the full rate of trial with the remainder at the reduced rate.
You may charge 30 days at the full rate of trial as the leading counsel (‘senior’ and ‘junior as leader’). The reduced rates must be applied for all trial days after the thirtieth day.
Counsel acting otherwise (‘junior alone’ and ‘junior with leader’) may charge 30 days at the full rate of trial. The reduced rates must be charged for all trial days after the thirtieth day.
You may charge 30 days at the full rate of trial as the leading counsel (‘junior as leader’). The reduced rates must be charged for all trial days after the thirtieth day
Counsel acting otherwise (‘junior alone’ and ‘junior with leader’) may charge 30 days at the full rate of trial. The reduced rates must be charged for all trial days after the thirtieth day.
You may charge 30 days at the full rate of trial as the leading counsel (senior’ and ‘junior as leader’). The reduced rates must be charged for all trial days after the thirtieth day.
Counsel acting otherwise (‘junior alone’ and ‘junior with leader’) may charge 30 days at the full rate of trial. The reduced rates must be charged for all trial days after the thirtieth day.
Similarly, the second junior counsel acting as ‘junior with leader’ may also charge 30 days at the full rate of trial. The reduced rates must be charged for all trial days after the thirtieth day.
Paragraph 17(ab) of the notes on the operation states:
“where counsel attends in one day more than one trial, only one trial fee is payable for that day except where the outgoing trial concludes and the incoming trial commences and calls for the first time.”
Where you attended and claimed for more than one trial on the same day you must confirm that the first trial has concluded and the second trial has commenced on that day.
More than one trial fee payable
You may charge for attending at the final day of a trial, and also day 1 of a separate trial where the jury is empanelled.
Other fees payable at the trial fee
You may charge for attending at a trial diet and also attending a commission on evidence at which evidence is adduced.
In any other circumstances only one fee is payable and you should ordinarily claim the trial day for the highest category of case.
For example, where you commenced a new trial prior to the formal conclusion of the outgoing trial only one trial fee will be payable.
Where this arises you can reasonably claim the higher trial fee where the cases are categorised differently.
Paragraph 17(ac) of the notes on the operation states:
“where the principal or originally instructed junior with leader in a case is unavailable and an alternative junior with leader attends for a day or more of trial, the fee payable for each day the alternative counsel attends trial is 90% of the applicable fee prescribed in paragraph 3 of Chapter 1 of Part 1 or paragraph 2 of Chapter 1 of Part 3 of the Table of Fees”
Where principal or originally instructed ‘junior with leader’ in a case is unavailable and it is deemed necessary to instruct another junior counsel in their place the fee payable to the junior who is covering is 90% of the trial rate.
Please note that this applies only to alternative ‘junior with leader’. Counsel acting in any other capacity (for example junior alone) is not impacted by this paragraph.
For example, where the principal ‘junior with leader’ is unavailable to attend day seven and eight of trial it may be necessary for another junior counsel to cover on those days.
Paragraph 17(ba) of the notes on the operation states:
“where at a trial diet there is more than one accused and counsel represents an accused who pled guilty at an earlier diet, the fee under paragraph 3 of Chapter 1 or 2 of Part 1 or under paragraph 2 of Chapter 1 or 2 of Part 3 is not payable, but a fee may be payable on cause shown under paragraph 4(pa) of Chapter 1 or 2 of Part 1 or paragraph 3(oa) of Chapter 1 or 2 of Part 3”
Where you are attending a trial diet proceeding against co-accused after your own client has plead guilty you must claim the fee for a “trial diet where there is more than one accused and counsel represents an accused who pled guilty at an earlier diet”.
Paragraph 17(hb) of the notes on the operation state:
“where in either of the following circumstances an offence with which an accused person is charged is not within category (a) of the relevant paragraph in the Table of Fees, the fee payable is that of the next highest category payable in either paragraph 3 of Chapter 1 or 2 of Part 1 (where the proceedings are in the High Court), or paragraph 2 of Chapter 1 or 2 of Part 3 (where the proceedings are in the Sheriff or JP Court) of the Table of Fees—
Paragraph 17(hb) applies only in relation to fees for work done on or after 25 September 2023 and you must ensure that you claim the correct case category based on the date the work was done.
This paragraph allows you to claim the appropriate elevated fee where the charge is aggravated by Section 29 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010 (serious organised crime).
For example, where a High Court indictment includes a charge of being concerned in the supply of Class A drugs and with an aggravation under Section 29 of the Criminal Justice and Licensing (Scotland) Act 2010 that the aforesaid offence was aggravated by a connection with serious organised crime, the category of fee payable would be elevated from category B to category A.
This paragraph allows you to claim the appropriate elevated fee where an indictment or a complaint includes a docket in terms of section 288BA of the Criminal Procedure (Scotland) Act 1995, which specifies any act or omission that is connected with a sexual offence charged in the indictment or complaint.
For example, where an indictment includes a charge of attempted rape and separately includes a docket under Section 288BA which specifies an offence of rape, the application of this paragraph would elevate the matter from a category B offence (in the High Court) to Category A.
Paragraph 17(h) of the notes on the operation states:
“where the trial of an accused person proceeds in respect of the offence of attempting to pervert the course of justice, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III shall be that for the offence to which the charge of attempting to pervert the course of justice relates. Where the offence to which the charge relates is not prescribed in Schedule 2, the fee payable shall be in terms of paragraph 3(b) of Chapter 1 or 2 of Part I and paragraph 2(b) of Chapter 1 or 2 of Part III”.
Where an accused person is charged with attempting to pervert the course of justice in most cases this will relate to a charge that is on the same indictment although on occasion the related charge on a separate indictment.
You must specify the related charge in order to allow the appropriate categorisation of the case.
Where this is not clear we shall, where possible, allow payment at a category which we are satisfied can be paid and invite you to provide further information in support of your claim where a higher category has been claimed.
For example, where an accused features on a High Court indictment charged with attempting to pervert the course of justice by assisting in the disposal of evidence which relates to a separate charge of murder for another individual on the same indictment you may claim High Court category A rates.
Where the related charge is not prescribed you must claim fees at category B rates.
Paragraph 17(ha) of the notes on the operation states:
“where a trial of an accused person proceeds in respect of the offence of conspiracy to commit an offence, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part 1 and paragraph 2 of Chapter 1 or 2 of Part 3 of the Table of Fees, is that for the offence to which the charge of conspiracy relates.
Where the offence to which the charge of conspiracy relates is not prescribed in Schedule 2, the fee payable is in terms of paragraph 3(b) of Chapter 1 or 2 of Part 1 and paragraph 2(b) of Chapter 1 or 2 of Part 3 of the Table of Fees”.
Where an accused person is charged with an offence of conspiracy to commit an offence the changeable category of the offence is driven by the charge to which the conspiracy relates
For example, where an accused features on a High Court indictment charged with an offence of conspiring to murder you may claim High Court category A rates.
Where the related charge is not prescribed you must claim fees at category B rates.
Paragraph 17(i) of the notes on the operation states:
“where an accused person pleads guilty at a hearing fixed for trial before the jury is empanelled, or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, or where, following the court deserting the trial simpliciter or pro loco et tempore, the indictment falls or, for any other reason, is not brought to trial and where no order is made by the court to postpone or appoint a further trial diet, the fee payable shall be two-thirds of the fee payable in terms of paragraph 3(a) or (b) of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III”.
With the exception of offences payable under High Court, category C, where a case concludes at a hearing fixed for trial before the jury has been balloted or empanelled you must claim the reduced two-thirds rate for the hearing.
Paragraph 17(j) of the notes on the operation states:
“in the same circumstances as those described at paragraph (i) above, but where the category of charge falls under paragraph 3(c) of Chapter 1 or 2 of Part I, the fee payable shall be that prescribed in paragraph 4(a) of Chapter 1 or 2 of Part I”.
Where a High Court category C case concludes at a hearing fixed for trial before the jury has been balloted or empanelled you must claim the fee under paragraph 4(a) of Chapter 1 or 2 of Part 1 (miscellaneous hearing fee).
Where the jury has been balloted or empanelled, any plea at a trial diet would attract the full rate for trial.
For example, if the jury is balloted on day one and a plea is agreed and tendered on day two, both days fall to be payable at the full trial rate.
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